Nichols v. WBX Transport, LLC et al
Filing
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OPINION AND ORDER granting 2 Motion to Remand to State Court. The Clerk of Court is DIRECTED to REMAND this action to the State Court of DeKalb County. Signed by Judge William S. Duffey, Jr on 8/19/2015. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LINDA M. NICHOLS,
Plaintiff,
v.
1:15-cv-202-WSD
WBX TRANSPORT, LLC,
CASTLEPOINT NATIONAL
INSURANCE COMPANY, and
ROBERT COUCHMAN,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff Linda M. Nichols’s (“Plaintiff”)
Motion to Remand [2].
I.
BACKGROUND
On April 2, 2014, Plaintiff filed this case against Defendants WBX
Transport, LLC, Castlepoint National Insurance Company, and Robert Couchman
(“Defendants”) in DeKalb County State Court, seeking compensation for damages
arising from an April 30, 2013, car accident. (See Compl. [1.1 at 73-81]).
On January 22, 2015, Defendants filed a petition to remove this case to
federal court pursuant to 28 U.S.C. § 1446(b)(3), based on diversity of citizenship
jurisdiction under 28 U.S.C. § 1332. (Defs.’ Pet. for Removal [1] at 3-4).
Defendants claim in their removal petition that only in December 2014 did
Plaintiff present information showing that the amount in controversy will exceed
$75,000. Within thirty days of this discovery, Defendants filed their removal
petition. (Id.)
Besides alleging an amount in controversy greater than $75,000, Defendants
also allege Defendant WBX Transport, LLC (the “LLC”) is a “Texas corporation
with its principal place of business in Texas.” (Id. at 2). Defendants allege
Defendant Castlepoint National Insurance Company is a “Florida corporation with
its principal place of business in Florida,” and Defendant Robert Couchman “is a
resident of Florida.” (Id.).
On January 27, 2015, Plaintiff filed a timely motion to remand [2] the case
to state court pursuant to 28 U.S.C. § 1447(c), on the ground that Defendants have
not met their burden to show diversity of citizenship. Specifically, Plaintiff argues
that Defendants failed to allege the citizenship of each member of the LLC. (Mot.
to Remand at 1).
On February 9, 2015, Defendants submitted their Response, to which they
attached an “Affidavit of Wayne Box” (the “Affidavit”). Mr. Box purports to be
the sole owner and member of the LLC, and a citizen of Texas. (Defs.’ Resp. [5]
at 4). In her Reply, Plaintiff argues that, because the Affidavit was not included in
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Defendants’ removal petition, the Court cannot consider the Affidavit to determine
whether to grant the Motion to Remand. (See Pl.’s Reply Br. [6] at 1).
II.
DISCUSSION
A.
Legal Standard
In removed cases, the removing defendant has the burden to establish the
existence of diversity jurisdiction. See Williams v. Best Buy Co., 269 F.3d 1316,
1319 (11th Cir. 2001). The Court has diversity jurisdiction over an action in which
the amount in controversy exceeds $75,000, and the action is between citizens of
different States. 28 U.S.C. § 1332(a)(1).1 “Diversity jurisdiction, as a general rule,
requires complete diversity—every plaintiff must be diverse from every
defendant.” Palmer Hosp. Auth. of Randolph Cnty., 22 F.3d 1559, 1564 (11th Cir.
1994). A limited liability company is a citizen of any state of which one of its
members is a citizen. Rolling Greens MHP, L.P. v. Comcast SCH Holdings
L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). “To sufficiently allege the
citizenships of these unincorporated business entities, a party must list the
citizenships of all the members of the limited liability company . . . .” Id.
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Plaintiff does not dispute that the amount in controversy exceeds $75,000.
She argues, rather, that Defendants have not met their burden to show diversity of
citizenship between Plaintiff and the members of the LLC.
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B.
Analysis
Plaintiff argues in her motion to remand that Defendants did not meet their
burden to show diversity of citizenship because they failed to allege the citizenship
of each member of the LLC. Defendants attempted to cure their deficient removal
petition by submitting the Affidavit showing the citizenship of Mr. Box, who
purports to be the sole member of the LLC. The parties disagree whether the Court
can consider the Affidavit in ruling on the motion to remand. However, the Court
does not need to reach this issue. Even if the Court found it could consider the
Affidavit, Defendants still would have failed to meet their burden to show
complete diversity because they have not properly alleged the citizenship of
Defendant Robert Couchman.
Defendants’ removal petition alleges Mr. Couchman “is a resident of
Florida.” (Defs.’ Pet. for Removal at 2). However, Defendants are required to
show citizenship, not residence. See Travaglio v. American Exp. Co., 735 F.3d
1266, 1269 (11th Cir. 2013) (“Residence alone is not enough.”). For United States
citizens, “[c]itizenship is equivalent to ‘domicile’ for purposes of diversity
jurisdiction,” and “domicile requires both residence in a state and ‘an intention to
remain there indefinitely.’” Id. (quoting McCormick v. Aderholt, 293 F.3d 1254,
1257-58 (11th Cir. 2002)). Defendants have not shown Mr. Couchman’s
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citizenship, and the Court is thus unable to determine if “every plaintiff [is] diverse
from every defendant.” See Palmer, 22 F.3d at 1564.
Defendants have had ample opportunity to properly establish that removal is
appropriate in this case. Their first opportunity was when they filed their removal
petition and supporting documents. Defendants had a second opportunity after
Plaintiff filed her motion to remand, putting Defendants on notice that the diversity
allegations in their removal petition were deficient. The Court will not grant
Defendants another bite at the apple.2 Because Defendants fail to carry their
burden to show that the parties are completely diverse, Plaintiff’s motion to
remand must be granted.
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In Corp. Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., the Eleventh
Circuit held that a district court’s sua sponte remand was improper because a court
should allow a party to cure a failure to specifically allege citizenship in the notice
of removal. 561 F.3d 1294, 1297 (11th Cir. 2009). Artjen does not require the
Court to allow Defendants a further opportunity to amend their removal petition.
If a party has filed a motion to remand, a court’s order to remand is not considered
sua sponte. See Velchez v. Carnival Corp., 331 F.3d 1207, 1210 (11th Cir. 2003)
(upholding remand where the district court granted the remand motion on a
“different basis, never asserted by [plaintiff],” because “[w]hen a party moves for
remand . . . that party wants to go back to state court. The motion establishes that
the moving party does not want to acquiesce in the federal forum despite any
procedural defects.”); Atl. Hosp. of Fla., LLC v. Gen. Star Indem. Co.,
No. 09-23661-CIV, 2010 WL 5313493, at *2 n.2 (S.D. Fla. Dec. 20, 2010)
(denying a motion to reconsider a remand order where the court remanded on
grounds other than those raised in plaintiff’s motion).
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III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand [2] is
GRANTED and the Clerk of Court is DIRECTED to REMAND this action to the
State Court of DeKalb County.
SO ORDERED this 19th day of August, 2015.
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